The case for a full court review…By Ali Tahir
By most accounts, 2024 was not a good year for Pakistan – marked by a rise in terrorist activities and persistent political instability.
One clear example of this is how a long-standing belief among lawyers – that the senior-most judge should be the chief justice – was directly challenged. The amendment paved the way for blocking Justice Mansoor Ali Shah’s path, appointing Justice Yahya Afridi as the chief justice of Pakistan instead. This appointment was orchestrated by a 12-member parliamentary committee. While most lawyers expected a massive backlash within the Supreme Court, the reaction was far more muted than anticipated. Nonetheless, the effects and aftershocks of the 26th Amendment continue to reverberate throughout the judicial system, creating complexities that remain unresolved.
Such disruptions illustrate why many lawyers have chosen to challenge the 26th Amendment. Numerous challenges remain pending in the Supreme Court, while others have questioned the jurisdiction of high courts. I, too, approached the Sindh High Court on behalf of members of the Sindh Bar Council. The petition was admitted for hearing, and notices were duly issued. Subsequently, in the Attock Cement case, the Sindh High Court ruled that the power to issue declarations does not lie with the constitutional bench. Instead, determining whether legislation is constitutional falls under the jurisdiction of the regular bench. This, as can be seen, is a tug of war.
If I were to recount my personal experience, the 26th Amendment dealt a severe blow to the comity of judges in the Sindh High Court (where constitutional benches were immediately carved out) and disrupted the spirit of camaraderie among them.
Meanwhile, debates within the Supreme Court have intensified over whether the 26th Amendment should be decided by the constitutional bench or by the full court, which includes all judges. Chief Justice Yahya Afridi maintains that this matter belongs to the constitutional bench, and he has no jurisdiction over the fixation of the cases. However, Justice Mansoor Ali Shah and Justice Munib Akhtar, the next senior-most judges, argue that the matter should be referred to the full court. This division underscores the urgent need for a resolution.
From the outset, I firmly believe that the case should be heard by all available judges of the Supreme Court sitting as a full court, including both constitutional and regular bench judges. My position is based on seven compelling reasons.
First, there is the principle of judicial impartiality, encapsulated in the Latin legal maxim ‘Nemo judex in causa sua’ – no one should be a judge in their own cause. If the constitutional bench alone hears the challenges to the 26th Amendment, it will be tasked with assessing the very amendment that justifies its own existence. This creates an inherent conflict of interest, as the bench would essentially be judging its own validity and authority. This will raise profound questions about fairness and impartiality, an attack the Supreme Court must avoid. How can a beneficiary hear challenges to an enactment that gives it benefit itself? The judges of the constitutional bench cannot be judges in their own cause.
Second, there is the philosophical contradiction of a judicial body examining the validity of its own creator. The constitutional bench, as a creation of the 26th Amendment, owes its existence to the amendment it is tasked with reviewing. How can a creature challenge its creator? This principle has been decisively addressed in the Zia-ur-Rehman case, which established that a judicial system, being a creation of the constitution, cannot alter or challenge its creator. It follows that the constitutional bench cannot objectively judge the validity of the amendment that brought it into existence, it is philosophically unintelligent. The full court of the Supreme Court, however, is a creature of the original 1973 constitution, and not of an amendment the vires of which remains to be adjudged.
Third, the challenges to the 26th Amendment come from a remarkably diverse cross-section of society, including bar associations, retired judges, eminent lawyers, civil society members, politicians, and journalists. The sheer breadth of these challenges underscores the amendment’s polarising nature. To ensure that the decision carries legitimacy and acceptance, the matter must be heard by the full court. A decision by a smaller bench, even a constitutional one, would invite skepticism and raise questions about its credibility and fairness.
Fourth, the principle of collective wisdom demands that all 16 available judges of the Supreme Court deliberate on this matter. The complexities of the 26th Amendment require thorough examination from every possible angle. A decision reached through collective deliberation will carry far greater weight and be less prone to criticism. Instances from Pakistan’s judicial history, such as decisions on the creation of the Diamer-Bhasha Dam fund and suo-motu notices on the Covid-19 pandemic or chatter in the Supreme Court’s courtroom in Karachi about Nasla Tower being bombed, would not have happened had we understood the power of collective wisdom, exercise by smaller benches of such powers illustrate the pitfalls of decisions made without collective input. The 26th Amendment, with its far-reaching implications, requires nothing less than the collective wisdom of all available judges of the Supreme Court.
Fifth, the Supreme Court’s authority predates the 26th Amendment. Established under the 1973 constitution, the Supreme Court retains the power to determine whether amendments align with the Constitution’s basic structure. While the constitutional bench may handle subsequent issues related to the amendment, the initial determination of its validity should rest with the full court, which is not a creation of the amendment and retains its independent authority. Of course, once the amendment is upheld and the challenges are rejected, then the constitutional bench would hear any future challenges to the vires of a future amendment.
Sixth, there is the matter of procedural precedence. On October 31, 2023, the Committee on Practice and Procedure decided that such matters should be placed before the full court. This decision predates the creation of the constitutional bench in November and remains valid under Article 254 of the constitution. Overturning this decision would undermine the procedural integrity of the judiciary and create unnecessary complications. Since it was already decided that the full court shall hear the matter, nothing should stop the full court from in fact hearing those matters.
Finally, past judicial controversies provide a cautionary tale. In the Sindh High Court Bar Association case, the dismissal of dozens of judges with a single judgment led to significant embarrassment for the judiciary. To avoid similar pitfalls and maintain judicial stability, the matter of the 26th Amendment must be addressed comprehensively by the full court.
The political instability of 2024 must not be allowed to spill over into the judiciary, which requires clarity and stability as we move into 2025. This is urgent, and this must be heard by the full court. The decision on whether to uphold the amendment or to set it aside for the first time in Pakistan’s history will mark a defining moment for the judiciary and the nation.
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